Obama v. SCOTUS

“I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

— Barack Obama, on the constitutional challenge to his health-care law, April 2

“Unprecedented”? Judicial review has been the centerpiece of the American constitutional system since Marbury v. Madison in 1803. “Strong majority”? The House has 435 members. In March 2010, Democrats held a 75-seat majority. Obamacare passed by seven votes.

In his next-day walk back, the president implied that he was merely talking about the normal “restraint and deference” the courts owe the legislative branch. This concern would be touching if it weren’t coming from the leader of a party so deeply devoted to the ultimate judicial usurpation — Roe v. Wade, which struck down the abortion laws of 46 states — that fealty to it is the party’s litmus test for service on the Supreme Court.

With Obamacare remaking one-sixth of the economy, it would be unusual for the Supreme Court to overturn legislation so broad and sweeping. On the other hand, it is far more unusual to pass such a fundamentally transformative law on such a narrow, partisan basis.

Obamacare passed the Congress without a single vote from the opposition party — in contradistinction to Social Security, the Civil Rights Act, the Voting Rights Act, Medicare and Medicaid, similarly grand legislation, all of which enjoyed substantial bipartisan support. In the Senate, moreover, Obamacare squeaked by through a parliamentary maneuver called reconciliation that was never intended for anything so sweeping. The fundamental deviation from custom and practice is not the legal challenge to Obamacare but the very manner of its enactment.

The president’s preemptive attack on the court was in direct reaction to Obamacare’s three days of oral argument. It was a shock. After years of contemptuously dismissing the very idea of a legal challenge, Democrats suddenly realized there actually is a serious constitutional argument to be made against Obamacare — and they are losing it.

Here were highly sophisticated conservative thinkers — lawyers and justices — making the case for limited government, and liberals weren’t even prepared for the obvious constitutional question: If Congress can force the individual into a private contract by authority of the commerce clause, what can it not force the individual to do? Without a limiting principle, the central premise of our constitutional system — a government of enumerated powers — evaporates. What, then, is the limiting principle?

Liberals were quick to blame the administration’s bumbling solicitor general, Donald Verrilli, for blowing the answer. But Clarence Darrow couldn’t have given it. There is none.

Justice Stephen Breyer tried to rescue the hapless Verrilli by suggesting that by virtue of being born, one enters into the “market for health care.” To which plaintiffs’ lawyer Michael Carvin devastatingly replied: If birth means entering the market, Congress is omnipotent, authorized by the commerce clause to regulate “every human activity from cradle to grave.”

Q.E.D.

Having lost the argument, what to do? Bully. The New York Times loftily warned the Supreme Court that it would forfeit its legitimacy if it ruled against Obamacare because with the “five Republican-appointed justices supporting the challenge led by 26 Republican governors, the court will mark itself as driven by politics.”

Really? The administration’s case for the constitutionality of Obamacare was so thoroughly demolished in oral argument that one liberal observer called it “a train wreck.” It is perfectly natural, therefore, that a majority of the court should side with the argument that had so clearly prevailed on its merits. That’s not partisanship. That’s logic. Partisanship is four Democrat-appointed justices giving lock-step support to a law passed by a Democratic Congress and a Democratic president — after the case for its constitutionality had been reduced to rubble.

Democrats are reeling. Obama was so taken aback, he hasn’t even drawn up contingency plans should his cherished reform be struck down. Liberals still cannot grasp what’s happened — the mild revival of constitutionalism in a country they’ve grown so used to ordering about regardless. When asked about Obamacare’s constitutionality, Nancy Pelosi famously replied: “Are you serious?” She was genuinely puzzled.

As was Rep. Phil Hare (D-Ill.). As Michael Barone notes, when Hare was similarly challenged at a 2010 town hall, he replied: “I don’t worry about the Constitution.” Hare is now retired, having been shortly thereafter defeated for reelection by the more constitutionally attuned owner of an East Moline pizza shop.

" If, as it should, the Supreme Court declares the individual mandate unconstitutional, it will be reaffirming our traditions, and not usurping them. The president, a former constitutional law teacher, should be ashamed of himself."

Stephen B. Presser

the Raoul Berger professor of legal history at Northwestern University School of Law and professor of business law at Northwestern University's Kellogg School of Management.

Quoting oregonbirdofprey:I don't understand those employment numbers Jer. There's a solar-cell manufacturer near me, big place, runs 24-7. They must employ more than 400 people. I can't look it up as I'm at work. It's called Solar World in Hillsboro, Oregon.

It has nothing to do with manufacturing, it is electrical generation (power plants). Read the article from Free Beacon linked with my post and it will make sense.

Seems your training was successful. No disrespect, but you have certainly fallen into marching step since your handle started. Just as expected by those who have driven your thought processes....That super-ego has emerged in you. Gnight

Quoting spathy:Ok WU friends Spathy out.The tides are a changing.And Jamiekins and I are going to go fish them.The world is my oyster.I just dont want to get my snook cut off on one!:O)

Rig for Wahoo maybe??? :)))

Landing big snook in the "razor blades", often referred to as oyster bars, is akin to landing sails on the shallow reefs when a cold snap brings the ballyhoo to the shallows. Or juvenile Tarpon in the mangroves :)

You west coast guys have got your work cut out for ya.Been there, done that...it's a hoot

Seems your training was successful. No disrespect, but you have certainly fallen into marching step since your handle started. Just as expected by those who have driven your thought processes. Your superego has emerged. Gnight

My training has been successful? Oh! You must be referring to my ability to still learn, even at my age. Did you really think that my age limited my ability to learn? Good news, Ossqss. Even when you reach my age, you will find that you are still capable of learning. Perhaps it really is not too late for you to begin the process? A certain degree of a desire to do so is usually helpful.

Driven by my thought processes? I can only suspect that you have discovered that I want to know the truth of the subject matter being discussed. You seem disappointed that you are no longer able to dazzle me with articles supplied by Antony Watts. Well, Anthony Watts was a learning process for me. I have progressed beyond that level now. ... Did you not believe me when I said I will make the efforts to learn the subject on my own? Did you think that I was incapable of doing so? Are you now disappointed in me simply because I have done so? .... Honestly, Ossqss, you should refrain from using theshepherd as a measure of your own intelligence. Try raising the bar a little higher now.

BTW, for old time sakes. A bit that may excite some of your memory cells.

Seems your training was successful. No disrespect, but you have certainly fallen into marching step since your handle started. Just as expected by those who have driven your thought processes....That super-ego has emerged in you. Gnight

I am tired after a long day at work but it seems as though your link keeps mixing total increase with total output.A percentage increase looks impressive on a column chart. And its impressive still until you look at the subsidies that created the total or the percentage increase.

And a 5 state chart is not by mistake.The wind blows less inconsistently in some states,and more inconsistently in 57 other states?????? or is that 47 other states.I get confused after listening to our President.Sorry:O) :O) :O)I couldnt resist!

Spathy, you missed the point entirely. This was easy to do, so there is no blame to be placed on you.

I had a simple point to make. Anyone is able to use the Internet to find information that they wish to use to support what they already want to believe. Nearly every article you find will have a grain of truth associated with it. The article may even contain 95% of the truth, if they want to convince of the 5% that is a lie. Which is where jer missed my point yesterday. The information you find will seldom be void of truth. There must be a grain of truth attached to it for it to be believable. Once they have shown you some truth, then it becomes easier for the writer of the article to convince you that the entire article is true. Truth is seldom, if ever, handed to you on a silver platter. You almost always have to seek the truth to know the truth. Those that only seek evidence to support their ideology will stop seeking the truth when they have discovered the evidence that supports their ideology. That is all that I was trying to say yesterday. That is all that I am trying to say today.

The industry with which I'm familiar is dairy farms. If I want to know how many are employed in agriculture's dairy industry, should I include those who manufacture tractors, build barns, and bottle milk? Or would it be more accurate to count those who feed and milk cows?

Jer included a quote from his linked BLS source: Within this industry, electricity generated from wind had the highest employment with 2,200 jobs, followed by biomass with 1,100 jobs, geothermal with 600 jobs, and solar with 400 jobs, BLS stated in a March jobs report. Here is a quote from the Earth Policy Institute that Rookie linked: In the short term, extending the PTC will be critical for the U.S. wind industry, which boasts more than 400 turbine component manufacturers and employs some 75,000 people. Ditto for OBOP's numbers - apples and oranges, in my opinion.

I don't understand those employment numbers Jer. There's a solar-cell manufacturer near me, big place, runs 24-7. They must employ more than 400 people. I can't look it up as I'm at work. It's called Solar World in Hillsboro, Oregon.

Let's not over think this monkey and his basic problem. [I'm Darwinian, so I get to say monkey]

He's a freaking narcissist with delusions of grandeur.

But then, Liberals and Progressives as a whole often suffer this same myopia. Alice's rabbit hole is their kaleidoscopic mirror. And you'd best not get caught helping them adjust that mirror. It's the only armor they seem to possess when brought to task. Character doesn't seem to focus in their reflections. Only image. And the more Victimized, the better.

If the Scotus gets more concerned with their image than the Rule of Law, then Justice will not be done. [Period.]

Since facts became a topic of conversation yesterday, with some people accusing that facts are lacking here. Truth be told I would love to have discussions based on facts, but those who complain ignore the ones presented and claim I do not provide them, here is a fact I heard today that blew me away.

First let me post something that most people are aware of and if they are not they should be. I'll just post the chart on sources of electricity which is self explanatory;

Putting aside the Obama Administrations all out assault on coal, by far the number one source of our electricity, what caught my attention was a fact about that 2.4% "other renewable" category. It was this from The Free Beacon

Within this industry, electricity generated from wind had the highest employment with 2,200 jobs, followed by biomass with 1,100 jobs, geothermal with 600 jobs, and solar with 400 jobs, BLS stated in a March jobs report.

That figure seemed so ridiculously low (the subject of the article) that I had to go to the linked source to make sure it was correct. It is.

Imagine after all the talk not to mention the billions of tax payer subsidies and "stimulus" poured into these industries that combined they employ just 4,700 people! To give you an idea how small a number that is the nuclear power industry employs 35,800 people.

Unless people are tempted to try to compare apples to oranges consider the bang for the buck or the Watt if you will as represented by this chart

the one thing.....the only thing....President Barack Obama is credentialed in is ......

constitutional law.

My Professor, My Judge, and the Doctrine of Judicial Review

Posted by Thom Lambert on April 3, 2012

Imagine if you picked up your morning paper to read that one of your astronomy professors had publicly questioned whether the earth, in fact, revolves around the sun. Or suppose that one of your economics professors was quoted as saying that consumers would purchase more gasoline if the price would simply rise. Or maybe your high school math teacher was publicly insisting that 2 + 2 = 5. You’d be a little embarrassed, right? You’d worry that your colleagues and friends might begin to question your astronomical, economic, or mathematical literacy.

Now you know how I felt this morning when I read in the Wall Street Journal that my own constitutional law professor had stated that it would be “an unprecedented, extraordinary step” for the Supreme Court to “overturn[] a law [i.e., the Affordable Care Act] that was passed by a strong majority of a democratically elected Congress.” Putting aside the “strong majority” nonsense (the deeply unpopular Affordable Care Act got through the Senate with the minimum number of votes needed to survive a filibuster and passed 219-212 in the House), saying that it would be “unprecedented” and “extraordinary” for the Supreme Court to strike down a law that violates the Constitution is like saying that Kansas City is the capital of Kansas. Thus, a Wall Street Journal editorial queried this about the President who “famously taught constitutional law at the University of Chicago”: “[D]id he somehow not teach the historic case of Marbury v. Madison?”

“According to a report from the China Electricity Council on the performance of China’s power industry in 2011, the average operating hours of hydropower generating facilities decreased 376 hours to 3,028 hours in 2011 due to severe drought, the lowest level of the past 20 years.

Meanwhile, the operating hours of wind power generating units plunged by 144 hours in 2011 despite an increase of 48.16 per cent in on-grid wind power output.

The operating hours of solar power generating units also declined in spite of the tripling of installed capacity of solar PV power.”

This indicates that the Chinese have realized that green energy is failing to provide the power they need. As such the Chinese are scaling back on solar and wind and focusing on shale and nuclear for reliable dependable energy.

President Obama has often pointed to the Chinese for their investment in wind and solar in his speeches and has implied that they were on a smart energy path and that the USA was not, and that the USA was “falling behind” in its ability to be a leader in wind and solar. While I’m sure China will be happy to sell Europe and the USA all the wind and solar they want blow money on, it seems that China is no longer willing to blow their own money on these most expensive and unreliable forms of energy.

It is interesting to note that the Chinese lied to president Obama at COP-15 about their willingness to consider binding CO2 limits and now they just bailed on Obama on their green energy plans for developing wind and solar, which proves Obama knows very little about the Chinese and even less about green energy. I have to wonder if it wasn’t the Chinese plan all along to fool Obama into wasting resources on “green energy” to weaken the USA while China took the lead in reliable forms of energy like nuclear power and gas fired turbines.

What is obvious from this change in energy development by China is that:1) China has a faster learning curve than the USA in understanding that wind and solar are a waste of resources2) China is serious in crafting an intelligent plan for energy security3) Our president is clueless about the Chinese and about energy and has been made to look like a fool4) Our president is not serious about crafting an intelligent plan for energy security

COLUMN: PEEVISH POTUS HAS NOTHING TO RUN ON BUT DEMAGOGIC ATTACKS AND DEMONIZATION OF REPUBLICANS

BY: Matthew Continetti

Am I alone in thinking that President Obama seemed angrier and bitterer and clingier than usual this week? Then again, you would be angry too if your best chance for reelection lay in smearing the opposition.

The presidential tantrum began Monday during a joint press conference with the prime minister of Canada and the president of Mexico. Obama was visibly annoyed when a reporter asked him to comment on the troubled health care law and on Mitt Romney’s recent accusation that he “doesn’t have the same feelings about American exceptionalism that we do.” Rather than explicate his philosophy of American government and what separates it from all others, however, Obama dodged the question and predictably talked about himself. “My entire career has been a testimony to American exceptionalism,” he said, regurgitating an argument written more than four years ago by his favorite pundit.

What made the press conference exceptional, however, was the president’s response on health care. First he performed an act of moral blackmail by suggesting that any justice who votes to overturn Obamacare will be personally responsible for the medical condition of America. Then he added that it would be “extraordinary”—indeed, “unprecedented”—for the Court to overturn “a law that was passed by a strong majority of a democratically elected Congress.” Finally, in an egregious but revealing moment of spite, the president said that “conservative commentators,” who have criticized “judicial activism” in the past but who now argue for Obamacare to be overturned, are a bunch of shameless hypocrites. “And I’m pretty confident that this Court will recognize that.”

Note that the former lecturer at the University of Chicago School of Law did not once give a reason why the law should be upheld on constitutional grounds. That question seems irrelevant to him. Much more important is a preemptive strike against a potential conservative majority on the Court, which might quite reasonably decide that an individual mandate to purchase health insurance exceeds Congress’ enumerated power under the Commerce Clause and, therefore, the entire law ought to be shucked and sent back to Congress, where legislators rather than judges can decide which parts should be kept and which scuttled. Only for a man with a seriously warped view of constitutional government would such actions count as “judicial activism.” Unfortunately for us, Obama is exactly that man.

Not even the media, however, could swallow Obama’s line about the supposedly “unprecedented” nature of judicial review. Perhaps after he leaves office the former editor of the Harvard Law Review can attend some remedial lectures on Marbury v. Madison, which established the Court’s power to strike down laws it deems unconstitutional. The Court has used precisely this power to overturn laws on numerous occasions in recent years, including the line-item veto, the Gun-Free Schools Zones Act, early versions of the partial birth abortion ban, and portions of the Military Commissions Act of 2006. A ruling against Obamacare would be unprecedented and extraordinary only in the howls of outrage it will provoke from liberals. The Court hasn’t made up its mind and already our most sophisticated journalists are slandering the justices as anti-democratic hacks. Imagine what the response will be if the Court actually holds against the administration. Ed Schultz might spontaneously combust.

By Tuesday, when the president addressed a laughing crowd of reporters at an AP luncheon, the White House had been forced to back off the charge that an anti-Obamacare decision would be “unprecedented.” What he meant to say, Obama told one reporter, was that “we have not seen a Court overturn a law that was passed by Congress on an economic issue, like health care, that I think most people clearly would consider commerce.” There was a time when the Court did have a stricter view of Congress’s power to regulate interstate commerce, Obama added, but that has not been the case “at least since Lochner.” And Lochner was a long, long time ago: “We’re going back to the ’30s, pre-New Deal.”

One might be tempted to give Obama the benefit of the doubt for getting his dates and law wrong—Lochner v. New York was decided in 1905, when FDR was in law school, and Lochner involved not a federal but a state statute—for the simple reason that the president’s answer to the AP, unlike his remarks at the press conference, resembled a legal argument. But one should resist that temptation, and resist it strongly, for Obama’s Q&A came after an incendiary, demagogic, and utterly scurrilous attack on the House GOP budget and its author, Rep. Paul Ryan of Wisconsin.

What made things worse was that Obama’s scathing indictment of the Ryan plan was not even original. Elements of the Republican budget may have changed between 2011 and 2012, but Obama’s critique has not. As the Republican National Committee was the first to observe, passage after passage of Obama’s speech had been copied and pasted from his comments the year before. The only difference was that, unlike in 2011, Ryan was not in the audience as the president lied about his plan.

The White House had leaked that the president would use the AP to turn the Ryan budget into a campaign issue. He did not disappoint. He accused Ryan, the GOP House, and likely nominee Mitt Romney of supporting a “Trojan Horse” containing a “radical” plan of “thinly veiled Social Darwinism” that is “antithetical to our entire history,” a “prescription for decline,” and unpatriotic to boot. His face contorted into a grimace, his eyebrows narrowed, his voice booming and angry, Obama said the Republicans want nothing less than to harm the sick and aged while handing out $150,000 checks to millionaires and billionaires.

The performance was so over the top it was almost laughable. The post-partisan reformer who claimed he would change the tone in Washington was again revealed as a canny pol willing to say anything about his opponents to win an election. Obama’s own Treasury Secretary has admitted that “We don’t have a definitive solution” to America’s long-term entitlement crisis; but, rather than working in good faith to reform Medicare and Medicaid, the president wants to scare his way to a second term.

The strangest moment of the speech was when Obama mocked Romney’s vocabulary. The former Massachusetts governor had correctly called Ryan’s budget “marvelous.” Obama’s brilliant rebuttal: That’s “a word you don’t often hear when it comes to describing a budget. (Laughter.) It’s a word you don’t often hear generally. (Laughter.)”

The president’s transparent motive was to suggest that Romney is somehow weird or out of touch for using the m-word. This is an argument likely to thrill the legs of Washington correspondents, who heartily laughed along with the president, but unlikely to provide independent voters with any reason whatsoever to support a second Obama administration.

Are we really to believe that Romney is disqualified from the presidency because of his word choices and support for the only serious plan to restore sustainability to the welfare state while promoting economic growth? What is Obama’s alternative? Never to say “marvelous” in public while raising taxes, foisting an unpopular health plan on a recalcitrant public, empowering an unelected board to set prices for Medicare and Medicaid, and delivering the worst economic recovery in history?

One hopes that when the media inevitably scold Americans for conducting the “most negative campaign ever,” they will acknowledge who, exactly, got the ball rolling. From targeting successful private citizens to claiming falsely that the Ryan plan “ends Medicare” to belittling Romney’s wealth and demeanor, the Obama campaign has signaled that it recognizes the Lily Ledbetter Fair Pay Restoration Act of 2009 is not a legislative achievement on which one might base a campaign. Obama’s problem is that with the stimulus a failure, Obamacare on the ropes, Solyndra a national punch line, the national debt exploding, and his only significant proposal an increase in taxes, Lily is all he has.

All these facts will be on display in the fall when Romney debates Obama and (hope springs eternal) Ryan debates Biden. The two sides will spar. One will emerge as serious about the challenges facing the country and the policies necessary to promote freedom and prosperity; the other will be exposed as embittered and clinging to a dilapidated welfare state. The truth will be there for all to see. And it will be marvelous.